Biological Weapons Bill 2010: Second Stage

Wednesday, 8 June 2011

An Cathaoirleach:I welcome the Minister of State, Deputy Jan O’Sullivan to the House. I know it is not her first time in this House and I congratulate her and wish her well in her portfolio.

[233]Minister of State at the Department of Foreign Affairs and Trade (Deputy Jan O’Sullivan):I am very pleased to be back in the Seanad after several years.

The principal purpose of this Bill is to make further provision in domestic law for the State’s obligations under the 1925 Geneva Protocol and the 1972 Biological and Toxin Weapons Convention, BTWC, as well as relevant elements of UN Security Council Resolution 1540 of 2004. The Geneva Protocol, to which Ireland acceded in 1930, banned the use in war of poisonous gases, as well as bacteriological methods of war. The protocol was supplemented in much greater detail by the 1972 BTWC and the 1993 Chemical Weapons Convention. Most poisonous gases are what today are referred to as chemical weapons and their development, production, stockpiling and use are prohibited by the Chemical Weapons Convention, which also requires the destruction of any existing weapons.

The BTWC prohibits the use, production, development, stockpiling and transfer of biological weapons. Its scope extends to weapons directed against animals and plants as well as humans. It was signed and ratified by Ireland in 1972 and entered into force in 1975. Resolution 1540 was adopted by the United Nations Security Council in the aftermath of the 9/11 attacks in the United States in 2001 with the primary aim of preventing weapons of mass destruction, including biological weapons, falling into the hands of terrorist organisations and other non-state actors. The Biological Weapons Bill is designed to fill possible gaps in our legislative framework by creating specific offences relating to the use, production and possession of biological weapons.

The use of poisonous and asphyxiating substances as weapons has been prohibited since before the First World War. In 1925, the Geneva Protocol reasserted this prohibition and extended it to the use of bacteriological methods of warfare. However, the 1925 protocol only prohibited the use of gases and bacteriological methods of warfare, and not their development, production or stockpiling. Also problematic was the fact that many states parties reserved the right to retaliate in kind if attacked with prohibited weapons.

During the Cold War, an increasing number of countries, notably the US and Soviet Union, developed biological warfare research programmes. Anthrax, smallpox and plague were among the diseases researched for use as weapons. In the late 1960s attempts commenced to control biological weapons and in 1969, the US announced the unilateral dismantlement of its programme.

Subsequent negotiations on a new global instrument to supplement the 1925 Geneva Protocol resulted in 1972 in the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons, and on their Destruction, otherwise known as the Biological and Toxin Weapons Convention — BTWC for short.

Today no state acknowledges that it possesses biological weapons or has a programme to develop them. Their prohibition, and the stigma attached, have been strong deterrents. While this has not completely allayed concerns of bio-weapons development by states, there are reasons the greatest threat today may come from terrorists or other non-state actors. Since the 1980s there have been huge advances in civilian genetics and biotechnology. Biological agents are relatively cheap to develop and produce, although they are much more difficult to weaponise and deploy. Facilities for researching and producing them are easier to hide than the facilities for producing other weapons of mass destruction, making detection more difficult. Furthermore, the equipment involved would have many legitimate civilian uses.

Fortunately there have been very few instances of biological weapons use by non-state actors, the most notorious — and recent — being the anthrax attacks in Washington in 2001. Letters containing anthrax spores were posted to the offices of several news media and two members of the US Senate. Five people were killed and 17 others infected. Widespread fear and panic [234]crippled the postal service and forced the evacuation of federal buildings, including Senate offices and the Supreme Court. The principal suspect later died and no one was ever brought to justice for these offences.

The BTWC is a hybrid instrument of international humanitarian law and disarmament and non-proliferation, and was the first multilateral treaty banning the production and use of an entire category of weapons. It bans the development, production, stockpiling, acquisition and retention of microbial or other biological agents or toxins, in types and in quantities that ‘have no justification for prophylactic, protective or other peaceful purposes.’ It also bans weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. The disarmament element of the convention requires states that possess biological weapons or weapons programmes to destroy them or divert them to peaceful uses.

The convention currently has 163 states parties and 13 signatories. The most noteworthy non-states parties are Israel, Egypt and Syria, although the latter two have signed and are therefore obliged to refrain from acts that would defeat the object and purpose of the convention. The use of biological weapons now prohibited under customary international law, a prohibition binding on all states. Fortunately biological weapons have only rarely been used. A biological weapon works by delivering to its target a biological agent which causes infection or allergy or the toxic product of a biological agent, called a ‘toxin’, which causes poisoning. Biological agents are usually either bacterial or viral. Examples of bacterial agents are anthrax, cholera and plague, such as bubonic plague. Smallpox and yellow fever are viral agents. Biological agents are capable of self-replication and it is this quality of being able to multiply within a host that makes them so potentially aggressive.

As the term suggests, most biological agents occur in nature and are ubiquitous in the natural environment, being found in water, soil, plants and animals. The negotiators of the convention faced a number of difficulties in framing its central prohibitions. Accordingly they prohibited the production and use of biological agents by reference to the purpose or intent of the producer or user. The prohibition laid down therefore extends to all biological agents and toxins unless they are intended for peaceful purposes, and unless their types and quantities are consistent with such purposes.

Resolution 1540 was adopted by the Security Council in 2004 under Chapter VII of the charter and is binding on all UN member states. The resolution affirms that the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security. Its purpose is to supplement the Nuclear Non-Proliferation Treaty and the Biological and Chemical Weapons Conventions and it focuses specifically on the risk posed by non-state actors, including terrorists, acquiring and using nuclear, chemical and biological weapons, their means of delivery and related materials. The Council also established the 1540 Committee, to which states are required to make regular reports on implementation of the resolution. Ireland has submitted a number of national reports in the period since 2004.

The resolution requires states to adopt appropriate effective laws that prohibit any non-state actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in such activities, participate in them as an accomplice, assist or finance them. The Biological Weapons Bill will demonstrate Ireland’s continuing commitment to implementation of the resolution.

To strengthen implementation of our international obligations, the Government established the interdepartmental committee on non-proliferation of weapons of mass destruction in [235]January 2010. The committee is responsible for co-ordinating implementation of the State’s obligations under international conventions, United Nations Security Council resolutions, European Union law and various policy frameworks of which Ireland is a member, to prevent the proliferation of nuclear, chemical and biological weapons. The committee also addresses other issues in the non-proliferation area, as necessary.

The committee is chaired by a senior official in the Department of Foreign Affairs and Trade and, in the case of matters relating to export control regimes falling under its remit, by an official of the Department of Jobs, Enterprise and Innovation. All relevant Departments and agencies are represented and the committee has discretion to invite other individuals or bodies to join or to attend meetings. The committee has been consulted closely on this Bill.

Ireland ratified the Biological and Toxin Weapons Convention in 1972. At that time the view was taken that the obligations assumed were adequately provided for under existing domestic law, principally the Firearms Acts. However, following a review of implementation of our non-proliferation commitments, particularly Resolution 1540, it has been decided to create specific biological weapons offences. This will remove any doubt about the feasibility of future prosecution of persons for activities involving biological weapons. Senators will be aware that there is already extensive provision in law relating to chemical weapons and nuclear materials, in particular the 1997 Chemical Weapons Act, the Radiological Protection Acts and the Containment of Nuclear Weapons Act 2003.

Biological agents occur widely in the natural environment and are therefore found in many places of work such as hospitals, food production plants and agricultural facilities. Many are harmless but others have the potential to cause ill health. There are workplaces, such as laboratories, where work involving biological agents is carried on intentionally and for perfectly legitimate purposes, such as the production of vaccines.

There is already a considerable body of law that sets down minimum requirements for the protection of workers from the health risks associated with biological agents in the workplace. This is to be found in EU biosafety law, the Safety, Health and Welfare at Work Act 2005 and the Health, Safety and Welfare at Work (Biological Agents) Regulations 1994, as amended. The requirements set out in this body of law must be applied to any activity where workers are actually or potentially exposed to biological agents as a result of their work.

Section 1 of the Bill defines a number of key terms, in particular the terms “hostile purpose” and “prohibited weapon”. Section 2 makes it an offence to develop, produce or use a biological agent or toxin for a hostile purpose, or to stockpile, acquire, possess, retain or transfer to another person a biological agent or toxin for a hostile purpose. It makes it an offence to develop, produce, use, stockpile, acquire, possess, retain or transfer to another person a prohibited weapon. It will also be an offence to attempt to do any of these things.

Section 3 creates offences of prohibited acts when committed outside the State in specific circumstances, that is, when committed on ships and aircraft registered in Ireland, or by members of the Defence Forces, citizens of Ireland or an Irish body corporate. Section 4 sets out the penalties to which a person guilty of an offence under sections 2 or 3 will be liable. The maximum penalty, on summary conviction, will be imprisonment for 12 months and a class A fine or both. For conviction on indictment the maximum penalty is life imprisonment, a fine or both, a potentially very severe penalty that reflects the seriousness of the offence.

Section 5 is a standard provision dealing with evidence of an accused person’s Irish citizenship. Section 6 is also a standard provision that prevents a person being prosecuted in Ireland in respect of an offence for which they have already been tried in another country.

Sections 7 and 8 provide that where a person develops, produces, uses, stockpiles, acquires, possesses, retains or transfers to another person a microbial or other biological agent, or toxin, [236]in prescribed circumstances there is a presumption that he or she has intended to do so for a purpose prohibited by the convention unless there is a reasonable doubt. Section 9 is a standard provision to ensure that bodies corporate do not avoid responsibility for conduct prohibited to individuals.

Section 10 provides that anything seized and retained in relation to a conviction under the Bill may be forfeited to the State and shall be disposed of as the Minister may direct. Section 11 sets out the procedure for forfeiture of any biological agent or toxin whether or not a conviction has been secured in a given case. Section 12 provides for forfeiture of related fixtures, such as buildings used for the purposes of producing a biological weapon. Section 13 references changes made to the Bail Act 1997 to include offences relating to biological weapons and Section 14 is a standard provision relating to expenses incurred under the Bill.

The Government will propose a number of minor amendments on Committee Stage in the Seanad. The amendments will simply reflect the changes in titles of Ministers affected by recent changes of responsibility in Government.

Since the 1950s, Ireland has played a leading role in efforts to promote nuclear disarmament and non-proliferation and, more recently, to prohibit anti-personnel land mines and cluster munitions. It is important that where we have international commitments, we ensure that adequate provision is made for them in domestic law. When possible gaps are identified, such as in the present case, it is important that we move to fill them. For this reason I commend the Bill to the House.

Senator Jim Walsh:Ba mhaith liom fáilte a chur roimh an Aire Stáit go dtí an Teach. Go n-éirí go mór léi san obair thábhachtach atá le déanamh aici ar son ár dtíre. I welcome the Minister of State, Deputy Jan O’Sullivan, to the House. From serving with her on other bodies in the House, I know she will bring a great deal of diligence to the job. I wish her well in her position.

The Bill, like much of the legislation we will see enacted in the coming months, was in preparation during the lifetime of the previous Government. It was introduced in the Dáil as long ago as last July. Technical amendments will come before the House but the Bill is, by and large, as published at that time.

The purpose of the Biological Weapons Bill 2010 is to ban the production, transportation or use of biological weapons. As the Minister of State has said, the Bill is specific to biological weapons. It forms part of a fabric of legislation dealing with nuclear and other weapons of mass destruction that have, all too often, been used against innocent citizens in various areas of conflict. I was watching a documentary some evenings ago — on RTE Two, I believe — in which there was a reference to the iconic image of a young girl of nine or ten years running down the road naked after her clothes had been burned from her body through the use of napalm in the Vietnam war. I understand napalm is an incendiary weapon rather than a weapon of mass destruction, but it brings home to us that there is much indiscriminate activity in areas of conflict. It is imperative that there be legislative backup, both domestic and international, to deal with this.

Recently we have noted that individuals who were involved in genocide in the Balkans conflict have, belatedly but thankfully, been brought to account for the war crimes they committed. We need to be much more diligent in this regard. Some notable countries have not signed up to making themselves subject to international justice when their soldiers or agencies are involved in atrocities. We should be critical of this. Some of the countries involved are major international players. They should bring themselves within the remit of the international courts [237]to ensure those who engage in conflict bear in mind they might be held to account some day for their criminal activities.

I welcome all the provisions of the Bill, particularly the one dealing with extraterritorial application. This is important because terrorist activities and crime generally, by their nature, cross geographical and state frontiers. The perpetrators have no respect or regard for boundaries. The legislation will extend the remit of our laws to Irish ships and aeroplanes should they be used in criminal activities of the kind in question.

I welcome the fact that one can be prosecuted for all offences associated with biological weapons. Being in possession of biological weapons will in itself constitute sufficient evidence to bring one to account under the legislation. This is to be welcomed. While this is a move away from the general test of prosecution law, it makes a great deal of sense in this instance because the consequences of biological weapon offences are horrendous for innocent people. I acknowledge biological agents can be used for legal purposes.

I question the low fine for ordinary offences which has been set at €5,000. Obviously, a term of life imprisonment can be imposed for indictable offences. In practice, how could an ordinary offence be committed? If one is in possession of or transporting biological weapons, or meets any of the criteria associated with the test in law, how could this be regarded as a minor infringement of the provisions? Given the potential consequences of using biological weapons, I would have believed any infringement would be of such seriousness that the perpetrator should not escape with a relatively minor fine or period of imprisonment. Perhaps the Minister of State will comment on this. If one is in possession of a biological agent for hostile purposes - one cannot be prosecuted unless there is hostile intent - the offence should at least be one of attempted murder, if not mass murder.

The Minister of State has said legislative instruments in this area date back about 86 years to the Geneva Protocol of 1925 and the Biological and Toxin Weapons Convention, BTWC, of 1972. We should all support strongly and subscribe to safeguarding the interests of the public in circumstances of conflict or terrorism. In that regard, the Minister of State mentioned UN Resolution 1540 which came about in the aftermath of the events of 11 September 2011 which constituted an horrendous attack on innocent people who were going about their daily work. One has great sympathy for the United States in this regard. The primary aim of the resolution is to prevent the use of weapons of mass destruction.

3 o’clock

The BTWC established a fundamental international norm that the hostile use of diseases was repugnant to mankind. I firmly believe a few basic principles to guide society and our actions, be they in the international arena or areas of conflict, are essential and should be the benchmark when breaches take place. Ireland has been very much at the forefront in this regard. It signed the BTWC in 1972. I am surprised there are only approximately 15 signatory states to the convention. If my information is correct, this seems low. I am concerned that certain states in the Middle East, particularly Israel, are not party to it. Article IV of the convention requires that each state must take “any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere”. It is on foot of this article that we are considering this additional legislation.

As the Minister of State said, it is not just states which are responsible for the use of biological weapons, although notable activities in this regard have been engaged in by states. Libya is very much in the news. The activities of Colonel Gadaffi during his term as leader of Libya have been highly questionable on occasion. One need only consider a serious air crash that took place on the neighbouring island. It is extraordinary that no international action was taken [238]at the time of the crash as a consequence. Now that there is movement towards change in many countries in the Middle East and given that Tripoli and other parts of Libya are being bombed, one must question the motivation of international action. Perhaps a moral compass is lacking at times in political and international affairs.

The final document that emerged from the sixth review conference in Geneva is interesting in that it is designed to improve criminal law pertaining to biological weapons and their proliferation. The Minister of State has rightly said it is not just a question of states’ activities. In this regard, she mentioned anthrax. Society is very vulnerable to the nefarious use of such agents. It is imperative that not just Ireland but other states globally embrace the provisions of these conventions and similar legislation.

It struck me from what we heard today about this issue that there should be a role for Ireland. We are a neutral country and in most areas of the globe Ireland’s activities as a neutral country are respected, acknowledged and supported. There must be an opportunity for Ireland to place itself as a centre of excellence for the non-proliferation of weapons, be they biological or nuclear, which lead to killing innocent citizens. As a result of the peace process in Northern Ireland, many areas of conflict now look to us as a country where the pattern of events and the agreements which led to the peace process could be a blueprint for them to follow.

I note that some of these conventions were signed in Geneva. Switzerland has been particularly adept at positioning itself in certain areas which has benefited it economically, certainly in banking and other areas, including watch-making. That did not happen by accident. It targeted areas in which it felt there were opportunities. We may well have an opportunity which we could exploit, not just to our own economic advantage but to the advantage of citizens across the world, in that we could use our good Christian values to underpin values we can export to other areas of conflict and where we could usefully play a constructive role. I leave that thought with the Minister as one that might be explored at some point in the foreign affairs area.

Senator Ivana Bacik:I welcome the Minister of State, Deputy O’Sullivan, on her first visit to the House as Minister and congratulate her on her portfolio of trade development at which I know she will be excellent. I am very pleased she has that portfolio.

I welcome the opportunity to debate this Bill which started life as a Bill introduced by the previous Government but which, when it came before the Dáil in October and November, had cross-party support. Speakers from the Labour Party and Fine Gael welcomed and supported it at that stage. It is a Bill on which there is genuine consensus.

The Bill is designed to give effect to international conventions on poisonous gases and biological weapons. It is a third strand in legislation required to give effect to our obligations under conventions banning nuclear, chemical and biological weapons and is best understood as part of that troika of weapons regulations.

The Minister of State referred to Resolution 1540 adopted by the United Nations Security Council in 2004 which refers to all three types of weapons — nuclear, chemical and biological — all of which it regards as a threat to international peace and security. Given that we have legislation already, particularly on chemical weapons, this was a clear gap to fill to create specific offences here relating to biological weapons.

Of the offences created, notable is an aspect Senator Walsh picked up on, namely, the extra territorial effect we have seen in an extensive range of legislation including the Bill we debated in this House last Thursday on female genital mutilation. That is to be welcomed.

[239]The definition of “prohibited weapon” contained in section 1 means any weapon, equipment or means of delivery designed to use a microbial or other biological agent or toxin for a hostile purpose or an armed conflict. A theme the Minister of State picked up on, as did other speakers in the Dáil, is the idea that these are agents which can be used for purposes other than hostile purposes. They have been used to develop vaccines and for other beneficial purposes, and the Bill must allow for the use of such substances where necessary. Deputy Upton, in the Second Stage debate in the Dáil, pointed out that there is potential for good while we are recognising in this Bill the horrendous potential for abuse of these substances.

We must also recognise, and it is acknowledged implicitly in the Bill, that the very nature of these biological agents makes it difficult to legislate against them. They have an in-built capacity for mutation and can be produced simply. The UN resolution of 2004 recognised that perhaps the biggest threat now is from non-state agents, persons acting in an individual capacity, as in the 2001 anthrax attacks in New York, for example. Because biological weapons are relatively simple to produce and have this capacity for mutation, like synthetically produced drugs they can be difficult to legislate against. The terms of the prohibition, therefore, must be carefully framed to be sufficiently broad to capture mutations but sufficiently specific to ensure that only those mutations for hostile purpose are criminalised.

I very much welcome the provisions of the Bill but it is worth examining briefly the context of the Bill and the reasons it is before the House. The American Medical Association is a useful reference guide to biological weapons which sets out some of the appalling harm they can cause. The Minister of State referred to anthrax but brucellosis, inhalational tularemia, pneumonic plague, smallpox and viral encephalitis are all diseases that can be spread through what the American Medical Association describes as bioterrorism agents. As a hypochondriac, I feel some of the symptoms described could apply to a wide range of illnesses. On reading them one can feel one is developing non-specific ‘flu-like symptoms such as fever, headache, profound weakness, fatigue and so on. That is all spread by bioterrorism agents that spread brucellosis.

Fortunately, the use of biological weapons and biological warfare has been relatively limited. Senator Walsh and other speakers in the Dáil referred to the use of chemical weapons, which perhaps have had more horrific effects, but serious harm can be caused through the relatively small use of biological warfare we have seen. We should remember that it was during the First World War that the German army developed anthrax, cholera and other diseases specifically for use as biological weapons. Some historians write of their use in spreading plague in Russia and among the horses of the French cavalry. That development led us to the Geneva Protocol of 1925, to which the Minister of State referred as the first multilateral agreement prohibiting both chemical and biological agents. It is a relatively new 20th century variation of warfare.

Later in the 20th century the United States and the Soviet Union in particular developed capacity for biological weapons and tested biological weapons during the 1950s and 1960s. Senator Walsh referred to the iconic image of the child in Vietnam running covered in napalm. I have been to Vietnam and seen in some of its museums the horrific photographs equivalent to that photograph of the devastation caused to children and civilians through the use of chemical warfare through the Vietnam war. It is an appalling indictment and not perhaps sufficiently well known about here because it was not just Vietnam but also in Cambodia and Laos that we saw chemical weapons used at immense human cost and causing consequences that are felt in those countries to this day. We are much more familiar with the horrendous damage caused by nuclear weapons but chemical weapons, and biological weapons, have serious capacity to cause that level of human suffering and harm.

Senator Jim Walsh:Hiroshima.

[240]Senator Ivana Bacik:Precisely, Hiroshima and Nagasaki. We are more familiar with that because that was on such a bigger scale.

That is not something that has been entirely left behind. The Minister of State pointed out that no state admits to having or developing biological weapons. No state acknowledges it posses such weapons or that it has a programme to develop them. There is no doubt that the international conventions have acted as a strong deterrent but it is a matter of concern that three states which are noteworthy are not party to the convention, namely, Israel, Egypt and Syria. At a time when we see Syria using dreadful force against its own citizens that is a matter of real concern.

There is also concern that Israel has used weapons in Gaza recently which are in breach of the convention. There have been concerns about Russia using such weapons in Chechnya, and we are aware of Saddam Hussein’s use of chemical weapons against the Kurds in Iraq. There have certainly been relatively recent instances of states at least being suspected of using biological and chemical weapons, often against their own citizens.

This Bill and the international convention are not just directed at states but also at individual users of biological weapons owing to the growing fear of what is called bio-terrorism. The Minister of State referred to the 2001 incident in the US where a number of people were killed by the delivery of anthrax by mail. There was an immense public scare about that at the time. In 1994, a small cult from Japan released anthrax in Tokyo, and there have been periodic scares over the past two decades about further individual threats to use biological weapons to spread anthrax and other kinds of disease. There was a notable arrest in Manchester in 2002 of a number of people suspected of using an apartment as a ricin laboratory to produce toxins.

These periodic scares and incidents where biological weapons have been developed for the suspected purposes of bio-terrorism are cause for concern. They give us a practical reason for having legislation in place. If we see arrests in an apartment in Manchester or if we hear of anthrax being delivered through the post, clearly a matter of concern for states is that small-scale production is going on with the potential to cause immense harm and public scares.

Senator Walsh asked whether these offences should be capable of being prosecuted through summary procedure. Section 4, which deals with penalties, refers to summary convictions where the maximum penalty can only be a class A fine or imprisonment for a term not exceeding 12 months. It seems somewhat hard to think of an offence under this Bill that would be capable of summary prosecution. In other words, such an offence would be regarded as minor, and I struggled with that concept. I was trying to think of someone who perhaps was very peripherally involved, living in an apartment where someone else was developing these weapons, yet who had sufficient knowledge about it that he or she could be prosecuted in a summary fashion. That is the only situation I can think of, but it seems more likely that this would be an indictable offence if someone were ever to be prosecuted. We hope that will not be the case and that this Bill will serve as a deterrent and fill a gap in our legislation.

Ireland has had a strong and proud record in promoting nuclear non-proliferation and the need to legislate at international level against weapons of mass destruction. I see this Bill as another step in our panoply of regulatory prohibitions against weapons capable of causing mass destruction. We have well-documented laws and conventions on chemical and nuclear weapons, and it seems very reasonable that we now pass this Bill on biological weapons. We all hope it will not be put into operation in any real way and that it will serve instead as a deterrent and will fulfil our international obligations. I welcome this Bill and I thank the Minister of State for her speech.

[241]Senator David Cullinane:I welcome the Minister of State to the House. It is her first time here in her capacity as Minister of State, and I sincerely wish her the best of luck in her new job.

I agree with what was said by Senator Bacik. This Bill has cross-party support, which is very important for issues such as this one. I welcome that the Bill brings Ireland into line with its obligations under the biological weapons convention, to which we are a signatory. Under this convention, we are committed to working against non-proliferation in whatever way we can, and we are also required to take the necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins or weapons which are prohibited under Article 1 of the convention.

Following on from the sixth review of the convention in 2006, Ireland committed to improving its legislative provisions to ensure non-proliferation and also to prevent the illegal production of materials for use in biological warfare. There is international consensus that the use of disease and biological weapons as instruments of war is barbarous and repugnant and, by its nature, inflicts the most harm upon innocent civilians. It is right and proper, therefore, that we construct legislative proposals that sanction the illegal production of such weapons or toxins.

It is also important for Ireland to set positive examples in this area. We purport to be a neutral state and other Senators have pointed out that we are very proud of the tradition of neutrality in this country. Despite our differences on the use of Shannon Airport by the US and on issues which people feel may have undermined our neutrality in recent years, we should be taking the lead on these issues, given the international respect Ireland has gained. For example, we played a significant role in the development of the landmines treaty. There is an opportunity for Ireland to take the lead on these issues.

We must put all this in a geopolitical context. It is important we are not seen to be hypocritical and are seen to be consistent. We heard examples of chemical weapons being used in East Timor, where almost one third of the population was wiped out by the Indonesian regime, and in Cambodia, Laos, Iraq and other countries. Many of these regimes were propped up, armed and financed by some of the more powerful states in the globe, including permanent members of the UN Security Council. While it is important we legislate in this area, we should also be conscious of our place in the UN and stand up to some of those more powerful states. Despite that we are a small state, we should call those large states on their failure in this respect. We must be seen to be consistent. We heard examples of what happened in Vietnam with the use of napalm. I watched a programme about a young girl who has gone on to tell her story and has improved her life since, but there are many victims of chemical and biological warfare, and not just in Vietnam. If we look to the origins of these regimes, how they came to power and how they were financially supported and armed, we find much that goes back to many western nations.

I would like to exercise some caution in respect of the burden of proof and to ensure the legislation is in line with Article 6.2 of the European Convention on Human Rights and Article 38 of our Constitution, both of which grant the right to a fair trial. This is a serious issue. We need to ensure the law is sufficiently robust in order that we can pursue people engaged in the production, stockpiling or transportation of biological weapons while also protecting a person’s right to a fair trial.

We debated the Criminal Justice (Female Genital Mutilation) Bill 2011 in the House last week and the extraterritorial aspect was an important part of that Bill. As Senator Walsh pointed out, globalisation itself has served up many different opportunities for the world, but it has also given rise to problems in different areas. The criminal justice sector is one such problem , and we need to be mindful of these. I am pleased this is contained in the Bill.

[242]I welcome the Bill and I support the Minister of State and the Government in bringing it forward. I am sure we will have further discussion on Committee Stage. I ask the Minister of State to reflect on the need for this to be properly proofed against UN human rights legislation and international law so we are seen to be doing the right thing.

Senator Paul Bradford:I welcome the Minister of State to the House. It is appropriate that as she has responsibility for development and, I presume, development co-operation, she is bringing forward legislation. Looking to the future with regard to international conflict and warfare, it will be trade rather than treaties and co-operation rather than confrontation on which we must focus. The history of mankind clearly shows that since time began people such as Adolf Hitler, Joseph Stalin, Mao Tse Tung and Saddam Hussein never felt particularly constrained by treaties. It is unusual and sadly amusing that we have treaties outlining what is allowable in warfare. In the so called “theatre of war” there are apparently rules regulating what one can and cannot do. There is no rule banning killing, murdering and maiming of people.

The great United States general, Douglas MacArthur, who was a colossus among United States generals in the 20th century gave a famous speech to the US House of Congress on his resignation after the Korean War. After 50 years in the army, he proclaimed he had formed the view that warfare was no longer an appropriate means of solving international disputes. This profound statement is something on which we can all reflect but we have not acted on it. This Bill and various treaties are very welcome but until such time as society and humanity move beyond the concept of warfare as a means of solving international disputes we will always live in a world of crisis, threat and fear of possible destruction.

I fully support the legislation and agree with everything the Minister of State has said. Her concluding paragraph was the most important because she spoke about Ireland’s leading role in the promotion of nuclear disarmament and non-proliferation and Ireland has a strong role to play. We are a small country. I will not get into the endless debate on neutrality because we have always managed to be neutral, but neutral on one side of the great political divide. I am glad we were on that side of the political divide and that we were able to remain neutral when the NATO shield protected us and the western world.

We have an international role at the UN in trying to spread and promote the concept of democracy and economic development. I admit various countries have differing concepts of what democracy means but empowering people and communities to have a reasonable degree of economic development and wealth is the long-term solution on a worldwide scale that we need. While starving countries remain there will always be the possibility of strife and warfare. We have to reflect upon this.

We must also recognise the new geopolitical challenges facing us which are a cause of concern. The very welcome growth of China and its economy also brings stresses and severe words are being exchanged between China and Vietnam, which one would not have expected 25 or 30 years ago. The ongoing difficulties between India and Pakistan and in the Middle East are pressure points where the possibility of conflict resulting in military disputes and war remains. We must be vigilant and support whatever the United Nations and the international community can do to reduce the stresses in these parts of the world.

If we are to move forward beyond the Bill and ensure it becomes irrelevant because there is no prospect, possibility or desire on anybody’s behalf to develop biological or nuclear weapons, the concepts of economic development, fair development, trade and international co-operation must be to the fore and this is where Ireland can be effective. Passing this legislation is a signal and of some small help but it will not make the world a far safer place. Notwithstand[243]ing our small size, politically and geographically, we have played an important role at EU and UN levels and we must continue to do so.

In the past ten or 15 years we have seen how dialogue, talks and compromise made a difference to a small conflict on the international scale, but the Irish peace process stemmed from debate, dialogue and concession and this is the strongest suit we can play internationally to spread these concepts of peace and co-operation.

With these few words, which perhaps were off the Bill itself, I welcome the legislation. It will be supported. Biological, nuclear and any weapons are prehistoric and of another era and should not be part of the future of mankind. We should be able to resolve disputes without resorting to weaponry or war. I might be looking for a panacea, and it might not be likely in the very near future but it is something towards which we must work. The Minister of State has advised that she will table technical amendments on Committee Stage, which I presume will be taken tomorrow, and we will support them and ensure the legislation is put in place.

Senator Colm Burke:Like my colleagues, I welcome the Minister of State to the House and wish her well in her role. I welcome the Bill. It is important that we put in place conventions that have been passed at international level. I note that in January 2010 an interdepartmental committee was established, which is headed by an official from the Department of Foreign Affairs and Trade. This is also important.

The Bill is quite comprehensive and clearly sets out the definitions and offences. A person who stockpiles, acquires, possesses, retains or transfers to another person such a weapon commits an offence. Once a person becomes involved in any way an offence is committed. The Bill sets out the prosecution options open to the State and it is a serious offence because the number of people affected by the use of such a weapon is large. Sections 7 to 9, inclusive, establish that a person cannot hide behind being part of a corporate group or company name.

Some of my colleagues referred to damage that has been caused. One of the problems with this type of weapon is its long-term effect. There have been long-term effects in countries already mentioned such as Vietnam and Cambodia. There is no defence when this material is used. It is not aimed at one person but at large numbers. The place where there is evidence of its most recent use in 2009 is Gaza where white phosphorus was used. Israel denied it had used white phosphorus, but there was clear evidence that it had been used. More than 1,400 people died in that conflict. I am not saying they died as a result of the use of white phosphorus, but it generated fear among the population. I visited the area four weeks after hostilities had ceased and it was disturbing to witness the level of fear among the people because they did not know what was coming next. It was amazing no action had been taken following the use of white phosphorus. Ireland has preserved its neutrality, but it is important when something such as this occurs, that penalties are imposed on the state involved to ensure it does not recur. It was disappointing no action had been taken following the use of white phosphorus in 2009.

Colleagues have referred to Ireland’s role as a neutral country. I visited a number of countries in which there was conflict and Ireland’s role was seen in a totally different light from that of other countries. Ireland was seen as the protector, occupying neutral ground and not being on any one side other than of that of trying to bring about peace. It is important that we use that role to ensure these conventions are implemented throughout the world. It is important that we use whatever powers we have at European Union and UN level to ensure the conventions which have been carefully drafted and negotiated are used to protect people, particularly those not involved in conflict. One of the things about the use of these weapons is that usually those most affected are not involved in the conflict but innocent parties who are defenceless and unable to avoid getting caught up in it. It is important, therefore, that we put this legislation in place and continue to use our influence to ensure other member states put the relevant [244]legislation in place, that this type of weapon is not used, peace is restored and there will be no long-term repercussions, which has always been the case when this material has been used.

I thank the Minister of State for introducing the Bill and look forward to its enactment at an early date.

Minister of State at the Department of Foreign Affairs and Trade (Deputy Jan O’Sullivan):I thank the Senators who participated in the debate for their support for the Bill. As Senator Jim Walsh said, it was drafted during the term of office of the previous Government and supported by the then Opposition. I very much welcome the fact there is again cross-party support for the legislation. There is no evidence to suggest there is terrorist activity of this kind, but it is important that we ensure our legislation is tight in order that we will have appropriate provisions in law to deal with such issues.

There were a number of common themes in the contributions, particularly concerning Ireland’s international role. Senator Colm Burke referred to the fact that Ireland had a very strong reputation internationally not only as a neutral state but generally because of the way it had acted during the years. It is right to state we are listened to on the international stage on these issues. It is important, therefore, that we play a leadership role and many Senators have referred to the fact that we can do so.

Senator Jim Walsh, among other Senators, has referred to the fact that there is an extra-territorial dimension. We are satisfied that it is included in the legislation. The Senator also referred to the fact that there were not too many signatories. One could only sign the convention before it came into effect. After that one simply had to accede to it. A significant number of states have now done so.

Senator Ivana Bacik asked the reason there was no list. I believe she answered her own question in that if we did have a list, we would have to add to it because the science is constantly changing and we might leave something out. Therefore, it would not be appropriate to have a list of specific items.

Questions were asked about the offences listed. Senator Jim Walsh, among other Senators, raised the level of offences. It seemed appropriate to keep non-indictable offences at that level because of the peripheral issue Senator Bacik raised about someone unknowingly being involved. It would not be appropriate to have a serious penalty in that regard.

Senator David Cullinane raised the question of the burden of proof and international rights obligations. The Bill is fully compatible with rights under the Constitution and the European Convention on Human Rights.

Senator Paul Bradford rightly raised broader issues about the root causes of conflict and the importance of having laws not only to punish those who produce, use or are involved in transporting biological and other weapons but to try to ensure people do not have a reason to develop these weapons in the cause of conflict. By and large, the legislation is aimed more at non-state actors. We do not have evidence that any state has biological weapons. The concern is that terrorists and other non-state actors might develop such weapons. The intention is to ensure states and others do not develop them. While we can hope states will want to avoid conflict, unfortunately, there are people in the world who might want to stir up conflict. Therefore, we must ensure we have appropriate legislation in place in that regard.

I again thank the Senators who participated in what has been a very positive debate. As Senators said, this meets one part of our international obligations, but we want to ensure we get everything absolutely right. As everyone said, Ireland has a very proud record in inter[245]national affairs and we want to ensure we introduce whatever legislation is necessary and that we behave on the international stage in a way that will continue to reflect well on the country.